State v. Franko

• Decision Date: 07 May 2013
• Docket Number: No. 32936.,32936.
• Citation: 142 Conn.App. 451,64 A.3d 807
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Lawrence A. FRANKO.

142 Conn.App. 451

64 A.3d 807

STATE of Connecticut

v.Lawrence A. FRANKO.

No. 32936.

Appellate Court of Connecticut.

Argued Nov. 13, 2012.

Decided May 7, 2013.

Jennifer Bourn, assistant public defender, for the appellant (defendant).

Nancy L. Chupak, senior assistant state's attorney, with whom, on the brief, were David I. Cohen, state's attorney, and Maureen Ornousky, senior assistant state's attorney, for the appellee (state).

GRUENDEL, BEAR and FLYNN, Js.

FLYNN, J.

The defendant, Lawrence A. Franko, appeals from the judgment of conviction, rendered after a jury trial, of one count of kidnapping in the second degree in violation of General Statutes § 53a–94 (a). ¹ On appeal the defendant claims that the trial court abused its discretion in denying his motion in limine to exclude certain evidence of prior uncharged misconduct.² He contends that the evidence was not relevant or material, and, even if deemed to have probative value, its prejudicial effect outweighed any such probative value and was harmful. We disagree and affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On November 10, 2008, the victim was packing groceries into her vehicle, which was parked in the parking lot of a Stamford grocery store. After the victim entered her vehicle, shut the door and started the vehicle, the defendant, who had a prior relationship with the victim, opened the vehicle's door and pushed the victim between the passenger's and driver's seats. The victim's keys to the vehicle were knocked out of the ignition during the victim's initial struggle with the defendant, but the defendant then started the vehicle with another key. The victim pushed the horn of her car in an attempt to draw attention to the situation. The defendant grabbed the victim's hair and hit her face against the dashboard, which caused the victim to bleed.

He then held the victim's head down as he drove her vehicle on the Merritt Parkway, in the direction of the defendant's residence. The victim, in an attempt to escape the vehicle, persuaded the defendant to pull into a rest stop for gas. The defendant pulled into the New Canaan rest area, which included a gas station, and parked the vehicle, but, after the defendant decided the rest area was “not the right place to talk,” he began to drive the vehicle in reverse in order to exit the rest area. Trying to prevent the victim from exiting the vehicle, the defendant grabbed the victim's belt and pants, until her pants ripped at the crotch area. The victim successfully escaped the vehicle and ran to the gas station. The victim called 911 on her cell phone and also requested that the gas station attendant call 911, as well. The defendant ran into the woods, behind the rest area, before state police arrived in response to the 911 calls.

Officer Glen Coppola of the Stamford police department (department) was dispatched to the rest area to meet with the victim. The victim subsequently followed Coppola to the special victims unit of the department. When the victim arrived at the department, she met with Sergeant Christian DiCarlo, who noted facial bruising, scratches around the victim's eyes and the fact that her jeans were torn. DiCarlo took the victim's statement and photographed the extent of her injuries. Later that night, the defendant surrendered to the department and was arrested on the charge of kidnapping in the second degree, of which he ultimately was convicted. This appeal followed. Additional facts will be set forth as necessary.

The defendant claims that the court abused its discretion in admitting prior uncharged misconduct evidence. Specifically, the defendant claims that (1) the admission of the uncharged misconduct evidence was not relevant or material to any exception under the Connecticut Code of Evidence; (2) the prejudicial effect of the admitted uncharged misconduct evidence outweighed the probative value; and (3) the admission of the uncharged misconduct evidence was harmful.

I

The defendant first argues that the admission of the uncharged misconduct evidence was not relevant or material to any exception under the Connecticut Code of Evidence. Additional facts are relevant to the defendant's claim. On June 15, 2010, the state filed a notice of evidence of uncharged misconduct. Both the state and the defendant submitted memoranda regarding the misconduct evidence, which the trial court decided to treat as a motion in limine. ³

After the state's first witness was heard, the victim took the stand for a proffer of the evidence of uncharged misconduct to the court, in the absence of the jury. The state sought to admit evidence of uncharged misconduct under § 4–5 of the Connecticut Code of Evidence, that the defendant had subjected the victim to verbal and physical abuse starting three months into their relationship.⁴ Specifically, the state sought to admit evidence that the defendant made “verbal threats to blow [the victim] up while she was in her van. And to have someone fix her.” Furthermore, the state wanted to offer three specific instances of the defendant allegedly damaging property connected to the victim. Namely that “the [d]efendant, in [the victim's] presence, smashed her cell phone, broke her sunglasses [and] slashed her tires,” as well as a separate vandalism incident where the defendant scratched or “keyed” the paint surface of the car of the victim's son. The state also represented that it would offer evidence as to two specific incidents of sexual assault of the victim, in addition to an incident where “the [d]efendant improperly and illegally obtained some registration information regarding a car that [the victim] was driving.” The state argued that the evidence of uncharged misconduct was admissible under § 4–5(b) of the Connecticut Code of Evidence to prove intent, motive, malice, to corroborate crucial prosecution testimony and to complete the story.

The defendant objected to the admission of the prior uncharged misconduct evidence by contending that the evidence was irrelevant to show intent, motive, malice and corroboration. The defendant further argued that many of the incidents were too remote in time, and he also questioned the credibility of the victim's testimony. He contended that none of the prior misconduct evidence ever was reported to the police or any third party; no domestic violence report was filed with any proper venue; the victim continued to see the defendant after any such alleged incidents. The defendant further maintained that there was no pattern or common scheme of the crime of kidnapping, or other signature of that crime, and the prejudice of any such introduction outweighed any probative value. He contended that the evidencewas not probative of the kidnapping charge, but rather would inflame the jury and create a bias against the defendant. The defendant maintained that the evidence was highly prejudicial when weighed against its probative value.

The court admitted all evidence of uncharged misconduct offered by the state except the evidence regarding the keying of the car of the victim's son. At trial, the victim testified about substantially the same evidence as she did in the state's proffer. In light of its ruling, the court provided the following limiting instruction to the jury after the victim's testimony containing the uncharged misconduct: “[M]embers of the jury, before the [s]tate calls its next witness, I'm going to give you a limiting instruction. And I'm going to substantially repeat this instruction at the end of the case when I give you the final instructions.

“But, for now, I want you to listen carefully to what I'm about to say. The [s]tate has offered evidence of other acts of misconduct of the [d]efendant which it claims occurred prior to the alleged kidnapping on November 10, 2008.

“The evidence that I am referring to, is the testimony from [the victim], that the [d]efendant damaged her personal property. Her testimony that the [d]efendant threatened her. And her testimony that the [d]efendant sexually assaulted her. None of that evidence is being admitted to prove the bad character of the defendant. Or, that the [d]efendant [had] a tendency to commit criminal acts.

“Such evidence is being admitted solely to show or establish the following. One, that the [d]efendant intended to restrict the [victim's] movement at the time of the alleged crime.

“Two, that the [d]efendant abducted the [victim] at the time of the alleged crime, [i.e.,] that he restrained the [victim] with the intent to prevent her liberation by using or threatening to use physical force or intimidation.

“Three, the [d]efendant's motive in committing the alleged kidnapping. And four, corroboration of crucial prosecution testimony regarding the claimed abduction at the time of the alleged kidnapping. And five, the complete story as presented by the prosecution.

“You may not consider such evidence as establishing a predisposition on the part of the [d]efendant to commit the crime charged, i.e., kidnapping, or, to demonstrate a criminal propensity.

“You may consider such evidence, if you believe it. And further find that it logically, rationally, and conclusively supports the issues for which it is being offered by the [s]tate; but, only as it may bear on the following issues.

“The [d]efendant's intent to restrict the [victim's] movement on the date of the alleged kidnapping. The element of kidnapping that requires proof of abduction. The [d]efendant's motive in committing the alleged kidnapping. Corroboration of the [s]tate's evidence regarding abduction. And to complete the story as presented by the prosecution.

“On the other hand, if you do not believe such evidence, or even if you do, if you find that it does not logically, rationally, and conclusively support the issues for which it is being offered by the [s]tate, then you may not consider that testimony for any purpose.

“You may not consider...